Shepherd v. Herndon

• Citation: 398 P.2d 511
• Decision Date: 12 January 1965
• Docket Number: No. 41257,41257
• Parties: Charles H. SHEPHERD, Plaintiff in Error, v. Jack HERNDON and Seth Herndon, Jr., Defendants in Error.
• Court: Supreme Court of Oklahoma

Page 511

398 P.2d 511

1965 OK 6

Charles H. SHEPHERD, Plaintiff in Error, v. Jack HERNDON and Seth Herndon, Jr., Defendants in Error.

No. 41257.

Supreme Court of Oklahoma.

Jan. 12, 1965.

Syllabus by the Court

Where an instrument attached to the petition in error has not been settled either by the trial judge as provided by 12 O.S.1961, Sec. 958, or by a stipulation of the parties as authorized by 12 O.S.1961, Sec. 966, it is wholly ineffective as a case made; after the expiration of the maximum period (of six months) prescribed by 12 O.S.Supp.1963, Sec. 972(a) for the commencement of an appeal such instrument may no longer be corrected by its settlement as a case made and an appeal sought to be prosecuted thereon will be dismissed.

Appeal from the District Court of Rogers County; John W. Adams, Judge.

Appellant seeks leave to withdraw case made for its settlement below. Application denied and appeal dismissed.

Jack E. Gordon, Claremore, Charles Dunn, Tulsa, for plaintiff in error.

Harry Crowe, Jr., Tulsa, for defendants in error.

DAVISON, Justice.

This appeal is sought to be prosecuted by case made. Before the court is appellant's application to withdraw the record to be 'completed, settled and corrected.' The question to be decided is whether the defect in failing to settle a case made before its filing in this court may be corrected after the expiration of the maximum period (of six months) prescribed by 12 O.S.Supp.1963, § 972(a) for the commencement of an appeal by case made.

This proceeding was commenced here November 2, 1964, by a petition in error with an exhibit in form of a record attached thereto and designated as case made. There is nothing in the record so filed to show that it has been settled as a case made either by the trial judge, as provided by 12 O.S.1961, § 958, or by a stipulation of the parties as authorized by 12 O.S.1961, § 966. The final order from which this appeal was lodged denied appellant a new trial on May 4, 1964. Since this appeal is sought to be prosecuted by case made, the maximum time (of six months) prescribed for its commencement by 12 O.S.Supp.1963, § 972(a) expired November 4, 1964.

In their objection to the application here under consideration, filed by appellees November 16, 1964, it is urged that after the statutory time for appeal has expired a case made, if a nullity when filed in this court, may no longer be withdrawn for its settlement. In support of their position appellees cite Albert v. Dalbey, 202 Okl. 110, 210 P.2d 659. Appellant counters this argument with a broad contention that under our more recent construction of 12 O.S.1961, § 659, in Oklahoma Turnpike Authority v. Kitchen, Okl., 337 P.2d 1081, this court is authorized to allow withdrawal of a case made, at any time before its decision is final, for the purpose of including therein any omitted matter, whether such matter was or was not of record below.

The record before us contains neither a certificate of settlement executed by the trial judge nor a stipulation of the parties dispensing therewith. There is nothing in the application under consideration to even intimate that the record was in fact settled as a case made before its filing in this court, but because the necessary signatures on the certificate or stipulation of settlement were inadvertently omitted therefrom, the deficiency is now sought to be supplied nunc pro tunc. , Appellees emphatically allege that the record attached to the petition in error has never been settled as a case made. If not actually admitted, this fact certainly stands uncontroverted. Absent appellant's denial thereof, the allegation so made by appellees must be taken as true. Adams v. Ogden, District Judge, 170 Okl. 429, 40 P.2d 677; Fritts v. Hankins Bros., 173 Okl. 475, 49 P.2d 508; Brown v. Holt, 174 Okl. 319, 50 P.2d 146; Whelchel v. Hembree, 201 Okl. 295, 205 P.2d 279.

Where a record attached to a petition in error has not been settled before its filing in the Supreme Court either by the trial judge as provided by 12 O.S.1961, § 958, or by a stipulation of the parties as authorized by 12 O.S.1961, § 966, it is a nullity and ineffective as a case made. Upton v. American Trust Co. of Purcell, 31 Okl. 456, 122 P. 159; Thomas v. Reynolds, 198 Okl. 395, 179 P.2d 19; Albert v. Dalbey, supra. An appeal by case made does not stand perfected unless within the maximum time prescribed by 12 O.S.Supp.1963, § 972(a), a petition in error is lodged in this court together with the original case made which is properly served, settled, authenticated and filed below. Daily v. Citizens' Nat. Bank of Pawhuska, 89 Okl. 94, 214 P. 116; School Board of Dist. No. 4 Coal County v. Yalch, 182 Okl. 605, 79 P.2d 223; and Barker v. Southwest Homes Corporation, 162 Okl. 77, 19 P.2d 141, 142. An appeal by case made is not regarded as timely perfected unless both the petition in error and the case made are filed within the maximum time prescribed therefor. Taylor v. Sites, Okl., 296 P.2d 152, 154; See Wakeman v. Greenan, 49 Okl. 785, 154 P. 512.

Settlement of a case made, be it by certificate of the trial judge or by stipulation of the parties, must be effected within the maximum time prescribed for appeal. After the expiration of this time the trial judge is wholly without power to settle the record as a case made and the parties may no longer effect a settlement by stipulation. In short, nothing can be done to belatedly confer...